Defensive investigations

Defensive investigative inquiries are the practical expression of every citizen’s constitutional right to defend themselves by meeting the charges brought against them, and an indispensable element of the “fair trial” which the legislature formalised with the 2001 reform (Law no. 63/2001). It should be stressed that the party’s right to defend itself by proof is recognised by the legislature in the broadest terms at every stage of the criminal proceedings (including after a final judgment, for the purpose of an application for revision, and before criminal proceedings are instituted, as a preventive form of inquiry by counsel under the combined provisions of Articles 327-bis and 391-nonies of the Code of Criminal Procedure) and not only for the suspect or defendant but also for the injured person, whether or not constituted as a civil party (as well as for any other private parties). The Code of Criminal Procedure governs defensive investigative activity in Title VI-bis, headed “investigations by counsel”, from Article 391-bis to Article 391-decies. The activities governed by the Code of Criminal Procedure are:

A documented or undocumented interview by counsel (or by substitutes specifically instructed) with persons able to report circumstances useful to the investigation;

A request for documents from the public administration;

Access to places open to the public, private places, or places not open to the public (the specific subject of this note).

The new Article 327-bis recognises counsel’s power to carry out investigations in search of evidence in favour of the client — in the forms and for the purposes laid down in Title V-bis of Book V of the Code of Criminal Procedure — from the moment the professional instruction is given, which must appear from a written instrument. In other words, the provision specifies that the condition without which the search for evidence cannot be said to be “procedurally protected” is the formal assumption of the quality of counsel in the forms provided by Article 96, paragraph 2, of the Code of Criminal Procedure. An express mandate to carry out defensive investigations is not, however, required, except for preventive investigations, and without prejudice to the client’s power to forbid them, since counsel may not act against the client’s will even if doing so would be in the client’s own interest.

The field of inquiries that counsel may carry out is certainly wider than the relatively narrow set specifically regulated by the code of procedure. There are various investigative acts by counsel which the legislature has not expressly provided for but which are entirely suitable for gathering material useful to the party:

Consultation of open sources accessible on the web;

Photographic documentation of places, routes, distances and journey times, readily produced with Google Maps;

Consultation of registers, lists and databases;

The carrying out of (repeatable) judicial experiments, documented by counsel and provided to the court (for example, the view a person can have from a given place, or the route said to have been covered by a person in a given situation, and more);

Technical operations carried out with the assistance of a consultant in order to document the state of places, persons and things;

A request for telephone records (of lines registered to the client) showing incoming and outgoing calls and the cells used, and more.

The power to carry out defensive investigations, which must not in any event obstruct those of the prosecution, is conferred not only on counsel for the suspect or defendant, but also on counsel for the other private parties. Counsel for the injured person is therefore certainly entitled.

For the civil party, the civilly liable person and the person civilly obliged to pay a fine, the activity of investigating is to be inferred from the time at which they enter the proceedings. Coming into play only after the close of the preliminary investigations, they cannot carry out inquiries during the investigative stage and are therefore not entitled to carry out preventive inquiries.

Article 327-bis, paragraph 3, of the Code of Criminal Procedure allows counsel to use assistants, substitutes, authorised private investigators and, where specific skills are required, technical consultants. Precisely because the latter act on counsel’s delegation, and counsel is responsible for their work, a written instruction is required, specifying the subject of the inquiry.

As regards preventive investigations in particular, Article 327-bis, paragraph 2, specifies that the power to carry out inquiries is conferred on counsel “at every stage and instance of the proceedings, in the enforcement of the sentence and in order to promote revision proceedings”. Investigative activity may therefore be carried out not only during the preliminary investigations, but also at later stages, such as the first-instance trial and the appeal, and at the enforcement and post-enforcement stage in order to obtain revision of a final judgment.

That provision must then be read together with Article 391-nonies of the Code of Criminal Procedure, which allows counsel, holding a specific mandate, to carry out inquiries against the possibility that criminal proceedings will be instituted, excluding those acts which require the intervention or authorisation of the judicial authority. Precisely because Article 391-nonies, paragraph 1, refers to Article 327-bis, preventive investigation is to be regarded as structurally linked to that under Article 327-bis, paragraph 1, permitted against the possibility that criminal proceedings will be instituted.

The purpose of a preventive inquiry is to search for elements favourable to the client in compliance with the law and with professional rules, but it cannot turn into the manipulation or removal of evidence for any future inquiries by the public prosecutor.

The results of preventive investigative acts, documented according to the requirements laid down for investigative activity within the proceedings, may be used in proceedings subsequently instituted.